Free-speech issues at center of UC Irvine blackface case

May 3, 2013

Updated Aug. 21, 2013 1:17 p.m.

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Darius Obana, president of UC Irvine's Asian fraternity Lambda Theta Delta, says his fraternity voluntarily accepted a 16-month university suspension because it offended the campus community with a YouTube video that featured a student in blackface. Whether the fraternity was within its free-speech rights to make the amateur music video is irrelevant, Obana says. PAUL RODRIGUEZ, ORANGE COUNTY REGISTER

Darius Obana, president of UC Irvine's Asian fraternity Lambda Theta Delta, says his fraternity voluntarily accepted a 16-month university suspension because it offended the campus community with a YouTube video that featured a student in blackface. Whether the fraternity was within its free-speech rights to make the amateur music video is irrelevant, Obana says. PAUL RODRIGUEZ, ORANGE COUNTY REGISTER

IRVINE – To Darius Obana, it doesn't matter if his fraternity was within its free-speech rights when one of its members danced in blackface in an amateur music video.

UC Irvine's Lambda Theta Delta voluntarily accepted a 16-month university suspension this week because the fraternity's YouTube video offended fellow students, said Obana, the fraternity's president – and that was unacceptable.

"Whether it was free speech or not, the fact of the matter is, people were hurt and offended, and that's the issue at hand," said Obana, 21, a business economics major.

While university administrators have applauded the Asian fraternity's decision to voluntarily accept the suspension, officials have insisted the decision was Lambda Theta Delta's alone, and they have not said whether the university would have had legal grounds to unilaterally impose the suspension – or any discipline at all.

The university's investigation is ongoing against both the fraternity and the four students who created the video, officials say.

"I don't know that the blackface does violate university policy," said Thomas Parham, UC Irvine's vice chancellor for student affairs. "It would be inappropriate to comment."

Among the central questions that administrators must confront, Parham said, is whether the video – which features a student portraying rap artist Jay-Z in blackface makeup – is a constitutionally protected form of free speech.

U.S. courts have consistently struck down attempts by colleges to regulate so-called hate speech, or speech that is deemed offensive to a particular individual or group.

Erwin Chemerinsky, dean of UC Irvine's law school and a First Amendment scholar, said that even the most offensive and racist speech is generally protected under the Constitution.

"College campuses have generally gotten the message," Chemerinksy said. "The bottom line is there is no First Amendment right to threaten or intimidate anyone, but nor can a public university punish a student just because the speech is offensive."

VIDEO PROMPTS OUTRAGE

In Lambda Theta Delta's two-minute video, filmed about three weeks ago to promote a fraternity event, four fraternity members dance and lip-sync to the hit single "Suit and Tie" by Justin Timberlake and Jay-Z. The one portraying Jay-Z wears blackface make-up.

In response, leaders of UC Irvine's Black Student Union staged campus protests, and called on the university to take more aggressive action to combat racial intolerance.

Blackface make-up was a theatrical technique used in 19th century vaudeville acts; it has been condemned for perpetuating racist stereotypes and attitudes toward black Americans.

Two years ago, UCLA investigated a similar incident, but concluded it had no grounds to discipline the perpetrator.

In a testimonial-style video posted to YouTube, UCLA student Alexandra Wallace disparaged the "hordes of Asians" at her school, mocked their speech and accused them of talking loudly in the school library, among other things.

"In America, we do not talk on our cell phones in the library," Alexandra Wallace says in the video. "I'll be typing away furiously, blah blah blah, and then all of the sudden, when I'm about to, like, reach an epiphany, over here from somewhere, 'Ohh, Ching chong ling long ting tong? Ohh.'"

The video drew widespread outrage, and Wallace apologized and eventually dropped out of UCLA after reportedly receiving multiple threats.

But in announcing their decision not to discipline her, UCLA officials cited Wallace's constitutionally protected right to free speech.

HISTORY OF HATE SPEECH BANS

Over the decades, public universities have repeatedly tried to ban hate speech on their campuses.

The anti-hate-speech movement picked up considerable steam in the 1980s and early 90s, when hundreds of public U.S. colleges instituted policies regulating hate speech, according to Vanderbilt University's First Amendment Center.

When challenged in court, though, they have been struck down as being either overbroad or over-vague, the First Amendment Center reported.

In the 1989 federal case Doe v. University of Michigan, a graduate student challenged a campus policy prohibiting "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed." The policy was created in response to several incidents, including a campus flier that declared "open season" on blacks and referred to them in derogatory terms.

The court concluded: "While the court is sympathetic to the university's obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech."

Even so, attempts to ban hate speech continue to crop up at college campuses.

Last year, a University of California advisory council recommended a systemwide ban on hate speech, after Jewish students complained about increasingly incendiary anti-Israel rhetoric at campus debates.

But two months later, UC President Mark G. Yudof dismissed the proposed ban outright, saying he wished he could create hate-free campuses but that the First Amendment trumped his vision.

Chemerinsky said that while public U.S. universities cannot regulate most hate speech, they have a right and an obligation to condemn it.

"It's important that the university use its power to express principles of community and denounce expressions of hatred on campus," Chemerinsky said.

Parham of UC Irvine's student affairs office said that regardless of any disciplinary action the university may take in the blackface video incident, the fraternity's extraordinary response should not be overlooked. Lambda Theta Delta realized it was out of line with its own mission and values, and that was the best outcome possible, Parham said.

"For them to find themselves outside of the conduct that they are supposed to promote as a fraternity, is pretty clear evidence they think something was wrong, irrespective of whether we think something is wrong or not," Parham said.

"What I'm encouraged by is that within a day, the entire community – even the fraternity – was saying, 'We are offended by this behavior.' That is a universal condemnation, and the best evidence for us that the cultural values are taking hold."

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